USA v. Dennis Dewayne Jackson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12533
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS DEWAYNE JACKSON,
a.k.a. Jason Franklyn,
a.k.a. Franklyn666987,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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D.C. Docket No. 3:21-cr-00076-TJC-MCR-1
____________________
Before W ILSON, J ORDAN, and H ULL , Circuit Judges.
PER CURIAM:
After pleading guilty, Dennis Dewayne Jackson appeals his
total sentence of 138 months’ imprisonment for receiving child
pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). On
appeal, Jackson argues his 138-month sentence, which is below the
applicable advisory guidelines range of 151 to 188 months, is both
procedurally and substantively unreasonable. Jackson also
contends his sentence constitutes cruel and unusual punishment,
in violation of the Eighth Amendment. After review, we affirm.
I. BACKGROUND
A. Offense Conduct
In March 2022, Jackson pled guilty to three counts of
knowingly receiving child pornography. The following facts are
drawn from Jackson’s presentence investigation report (“PSI”), to
which Jackson did not object.
On July 3, 2021, defendant Jackson’s brother, John Jackson,
Jr., invited an undercover Federal Bureau of Investigations (“FBI”)
agent to a private online “chat” group on “Kik Messenger” that
catered to people interested in sexual activity between “daughters
and daddies.” The FBI agent was posing as a 14-year-old girl.
Once admitted to the group, the FBI agent learned that Jackson and
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his brother John were listed as its administrators. The FBI agent
observed that files containing graphic videos of child pornography
were regularly shared to the group’s members, including some
uploaded by Jackson’s brother the same day the agent entered the
chat group.
The next day, law enforcement searched a property where
the brothers maintained separate residences. A subsequent
forensic review of the cellphone of Jackson’s brother John revealed
that John had traded child pornography with at least five other
individuals, including Jackson. Private messages between the
brothers showed that Jackson had received seven videos and two
images of child pornography from his brother, some of which
contained prepubescent children engaging in sexually explicit
conduct.
Three of these videos, all received on July 3, 2021, formed
the basis for the three counts to which Jackson pled guilty. All three
videos depicted adult males penetrating female minors’ vaginas. In
two of the videos, the minors were fully nude and prepubescent.
In one of the videos, the prepubescent minor’s eyes were covered
with silver duct tape, and she performed oral sex on a second male.
The brothers also discussed a 15-year-old female with whom
John was communicating. When Jackson asked his brother
whether the female had sent him anything, John sent Jackson
photographs of a young female. Jackson responded, “Yummy she
need to be fuck by us both right now.” Jackson also asked how old
the female was, and when his brother said the female was 15 years
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old and “looking for a daddy,” Jackson said, “Ok see if she send any
nudes.”
In another private message conversation on July 1, 2021,
Jackson asked to be added back to the “daughters and daddies”
group, and John added Jackson back. When Jackson asked his
brother, “Anything good” his brother sent “age difficult files,” to
which Jackson responded, “Nice.” Jackson also advised his brother
that he would not save any of the images “this time” and that he
had to delete “700 pics and vids” previously.
During a July 22, 2021 interview with FBI agents, Jackson
admitted receiving approximately 1,500 images and videos of child
pornography over the last two years, as well as distributing about
70 to 80 images of child pornography. Jackson also acknowledged
he was an administrator of the “daughters and daddies” chat group
and that he had both sent and received child pornography using his
Kik Messenger account. Jackson said he knew trading child
pornography was illegal.
B. PSI
Jackson’s PSI assigned him a base offense level of 22 under
U.S.S.G. § 2G2.2(a)(2). The PSI then added: (1) two levels because
his offense involved a prepubescent minor, pursuant to
§ 2G2.2(b)(2); (2) two levels because he knowingly engaged in
distribution, pursuant to § 2G2.2(b)(3)(F); (3) four levels because
the offense involved material that portrayed sadistic or masochistic
conduct or other depictions of violence, or sexual abuse or
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exploitation of an infant or toddler, under § 2G2.2(b)(4); (4) two
levels because he used a computer, under § 2G2.2(b)(6); and (5) five
levels because the offense conduct involved 600 or more images,
under § 2G2.2(b)(7)(D) and note 6 to the commentary. The PSI
then subtracted three levels for Jackson’s acceptance of
responsibility, under § 3E1.1(a) and (b), yielding a total offense
level of 34.
With a criminal history category of I and a total offense level
of 34, Jackson’s advisory guidelines range was 151 to 188 months
of imprisonment. The statutory mandatory minimum for
Jackson’s offenses was five years in prison, and the maximum was
20 years per count. 18 U.S.C. § 2552(a)(2), (b)(1).
The PSI noted that at the defense counsel’s request, a
psychologist had conducted a psychosexual evaluation of Jackson.
A copy of the psychologist’s report was attached to the PSI.
Among other things, the report diagnosed Jackson with
generalized anxiety disorder and dependent personality disorder,
suggested he was led by his brother into viewing child
pornography, and opined that Jackson’s recidivism risk for any
sexual offense was 3.2%, and lower for a child pornography
offense. According to a summary of Jackson’s clinical interview,
Jackson claimed that (1) he had joined chat groups to make friends,
(2) his brother created the “daddies and daughters” chat group and
added him as an administrator without his knowledge, (3) his
brother sent him child pornography unsolicited, (4) he had told his
brother to stop and deleted the images, and (5) at one point he left
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the group. While Jackson admitted viewing and sharing child
pornography, he claimed it was because he wanted to be part of a
group and stay connected to his brother. Jackson denied being
attracted to minors and said the images made him sick to his
stomach.
C. Sentencing Hearing
At sentencing, the district court noted that it had previously
sentenced Jackson’s brother John. After confirming that there were
no objections to the PSI, the district court adopted the PSI and
found that Jackson’s advisory guidelines range was 151 to 188
months.
The government requested a 168-month sentence, which
was in the middle of the range. The government cited,
inter alia,
Jackson’s and his brother’s deep involvement in co-administrating
the chat group, Jackson’s careful deletion of images and videos so
that they would not be found on his phone, Jackson’s admission
that he received about 1,500 files of child pornography over a two-
year period, and the violent nature of some of the files the FBI had
recovered.
The government discounted the psychologist’s report,
noting that the report acknowledged Jackson had minimized his
conduct and may have been deceptive during his interview. The
government stressed that during his interview with the
psychologist, Jackson denied conduct that was established during
the investigation, including his viewing of child pornography and
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being an administrator of the “daddies and daughters” group. The
government also noted that Jackson gave encouraging responses to
his brother’s messages about a 15-year-old female. The
government argued that the psychologist’s 3.2% recidivism rate
was highly suspect given Jackson’s deception during the interview.
Jackson requested a downward variance to the mandatory
minimum sentence of 60 months. Jackson stated that he had “no
objection to the Court giving the advisory guidelines respectful
consideration.” Jackson argued, however, that the guidelines were
not entitled to substantial weight in light of the U.S. Sentencing
Commission’s report to Congress, which “shows the problem that
we have in these kind[s] of cases, especially Section 2G2.2, where it
doesn’t help the Court to distinguish between offenders based on
their relative culpability and their dangerousness.” Jackson
contended the provisions of § 2G2.2 “are outdated,” “concentrate
most offenders at or near the statutory maximum,” and fail to
“distinguish between the most culpable offenders,” such as
Jackson’s brother, and “those who committed minor offenses.”
With respect to the other § 3553(a) factors, Jackson
emphasized: (1) his brother’s higher degree of culpability,
characterizing himself as merely “a follower”; (2) his difficult
childhood, which included sexual abuse by his father and a cousin,
physical and emotional neglect by his parents, his removal from his
parents’ home by child protective services and placement with his
aunt, his father’s incarceration, his family’s history of mental
illness, and his own attempted suicide; (3) the continued support of
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Jackson’s wife and aunt; (4) Jackson’s own expressions of remorse
and a desire for rehabilitation during his allocution; (5) the lack of
any prior criminal history; (6) the fact that Jackson’s offense did not
involve advertising, pimping, or trafficking, and there was no
evidence of “deep-seated pedophilia or predatory sexual conduct”;
and (7) the psychologist’s opinion that his recidivism rate was only
3.2%.
D. District Court’s Sentence
After considering the § 3553(a) factors, the district court
determined a downward variance was appropriate and imposed a
total sentence of 138 months—13 months below the low end of the
advisory guidelines range. The district court also imposed a 20-
year term of supervised release and granted Jackson’s request for
review every five years to determine if continued supervised
release is needed.
In considering the § 3553(a) factors, the district court noted
that the guidelines, while helpful, were only advisory. The district
court acknowledged that U.S.S.G. § 2G2.2 had faced significant
critique suggesting it should be reformed. The district court agreed
with Jackson that the advisory guidelines ranges calculated using
§ 2G2.2 tend “to skew high” because of “things that are true in all
child pornography cases,” such as internet or computer usage, and
made “it hard to differentiate what could be considered less serious
cases from the most serious type.” As a result, the district court
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observed that the provisions of § 2G2.2 “still need to be looked at
with caution.”
The district court stressed, however, that the images
involved in Jackson’s particular offenses portrayed “horrific
physical and sexual abuse of prepubescent minors” and that it was
“really beyond description how bad this material is.” The district
court noted that while Jackson had not created the images, he had
“propagated it by his actions, not only in viewing it himself, but
also being involved in these chatrooms and discussions with his
brother about” the images “in an approving way.” Jackson’s
actions also “increase[d] the victimization of the minor children”
by making the images accessible in the chat group, where it was
“virtually impossible to call [them] back.”
The district court agreed that Jackson was less culpable than
his brother John, who had “other aggravating factors” and received
a statutory-maximum twenty-year sentence. As a consequence,
the district court concluded Jackson should receive a lower
sentence.
However, the district court also found Jackson’s
involvement with child pornography to be significant, pointing out
that: (1) Jackson and his brother “were intertwined in some
respects,” both using the same chat group and talking with each
other about the material found there in inappropriate and graphic
terms; (2) Jackson was denominated as an administrator of the
chatroom; (3) after leaving the chat group, Jackson then asked to
be readmitted; (4) Jackson had admitted to being involved in the
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activity for at least two years and to receiving “lots of images”; and
(5) Jackson’s conversations with his brother “gave some indication
of interest in being hands-on with at least teenage victims.”
As for Jackson’s personal history and characteristics, the
district court acknowledged his “terrible upbringing,” including
being abandoned by his parents and molested by relatives, and his
later successful 15-year marriage, noting that he had been a good
father to his two children and supported his disabled wife.
The district court concluded Jackson’s risk of recidivism was
“uncertain” and that the psychologist’s “psychosexual evaluation
left a lot to be desired,” making it “less valuable.” The district court
found that Jackson was not forthright with the psychologist about
the extent of his conduct, including denying activities he had
admitted to FBI agents or as part of his guilty plea.
After the district court pronounced the sentence, Jackson
objected to its reasonableness, without success, but did not raise
any procedural errors or constitutional objections.
II. GENERAL PRINCIPLES
“We review the reasonableness of a sentence for [an] abuse
of discretion using a two-step process.”
United States v. Cubero,
754 F.3d 888, 892 (11th Cir. 2014) (quotation marks omitted). We
first determine whether the sentence is procedurally reasonable.
Id. A sentence is procedurally unreasonable if the sentencing court
commits a “significant procedural error,” such as misapplying the
guidelines or treating them as mandatory, failing to consider the 18
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U.S.C. § 3553(a) factors, choosing a sentence based on clearly
erroneous facts, or failing to adequately explain the sentence
imposed.
Id.
Second, we examine whether the sentence is substantively
unreasonable in light of the § 3553(a) factors and the totality of the
circumstances.
Id. Because the weight given to any particular
§ 3553(a) factor is within the district court’s discretion, this Court
will not substitute its judgment for that of the district court.
United
States v. Alvarado, 808 F.3d 474, 496 (11th Cir. 2015). “A district
court abuses its sentencing discretion if it does not consider
relevant factors that were due significant weight, gives significant
weight to improper or irrelevant factors, or balances the proper
factors unreasonably.”
United States v. Woodson, 30 F.4th 1295,
1308 (11th Cir. 2022). We will not reverse a sentence unless “we
are left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.”
United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation
marks omitted).1
1 The § 3553(a) factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with needed educational and
vocational training or medical care; (6) the kinds of sentences available; (7) the
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At both steps, the party challenging the sentence has the
burden of showing it is unreasonable.
Alvarado, 808 F.3d at 496.
Where, as here, the appellant fails to object to a purported
procedural error at sentencing, we review procedural
reasonableness for plain error.
United States v. Vandergrift, 754
F.3d 1303, 1307 (11th Cir. 2014).
III. PROCEDURAL REASONABLENESS
As to procedural reasonableness, Jackson argues for the first
time that the district court erred when it calculated his total offense
level using U.S.S.G. § 2G2.2, the guidelines applicable to non-
production child pornography offenses. Jackson relies on a 2013
Sentencing Commission report to Congress criticizing and
requesting authorization to amend U.S.S.G. § 2G2.2, which was
promulgated by direct congressional mandate. Jackson contends
§ 2G2.2 is not based on empirical data and that the 2013 report
essentially renders it invalid.2
Sentence Guidelines range; (8) pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwarranted sentencing disparities; and
(10) the need to provide restitution to the victims. 18 U.S.C. § 3553(a).
2 Despite Jackson’s claims to the contrary, he did not object at sentencing to
the district court’s use of § 2G2.2 to calculate his total offense level. In fact,
Jackson did not object to any of the district court’s guidelines calculations.
Although Jackson referred to the Sentencing Commission’s 2013 report, he did
so only to support his request for a downward variance from the advisory
guidelines range he had already admitted was correctly calculated. Thus, to
the extent Jackson is raising this alleged procedural error in this Court, our
review is for plain error.
See Vandergrift, 754 F.3d at 1307.
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Jackson’s argument concerning § 2G2.2 is squarely
foreclosed by our precedent. In
Cubero, this Court recognized that
the Sentencing Commission’s 2013 report is something “a district
court may certainly consider . . . in choosing the ultimate
sentence,” but rejected the argument that the 2013 report rendered
§ 2G2.2 invalid or required the district court to vary downward in
non-production child pornography cases.
Cubero, 754 F.3d at 899–
900. The
Cubero Court concluded the district court’s application
of § 2G2.2’s offense-level adjustments in non-production cases did
not constitute procedural unreasonableness.
Id.
In an effort to distinguish
Cubero, Jackson maintains the
application of § 2G2.2 in his case resulted in an “absurd sentence
for a first-time offender who had no physical contact with a minor
depicted in the images or videos.” This argument is really about
whether his sentence is substantively unreasonable. And the Court
in
Cubero concluded that the “use of § 2G2.2 as an advisory
guideline” does not make the resulting sentence either
“procedurally or substantively unreasonable.” 754 F.3d at 900.
In any event, these facts do not distinguish
Cubero. The
defendant in
Cubero, like Jackson here, was a first-time offender
who had no contact with children.
Id. Moreover, Cubero received
a 151-month sentence, higher than Jackson’s 138-month sentence.
Id. at 892.
The district court here did consider the criticisms of § 2G2.2
in choosing to vary downward and impose a below-guidelines
sentence. However, the district court was not free to disregard
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14 Opinion of the Court 22-12533
§ 2G2.2 entirely in correctly calculating Jackson’s total offense level
and advisory guidelines range.
See id. at 900 (stating that the 2013
report “does not alter the district court’s duties to calculate the
advisory guidelines range . . . .”). Jackson has not shown error,
much less plain error, in the district court’s use of § 2G2.2 to
calculate Jackson’s total offense level of 34. Nor has Jackson shown
that his 138-month sentence is procedurally unreasonable.
IV. SUBSTANTIVE REASONABLENESS
Jackson also has not shown his 138-month sentence is
substantively unreasonable. For two years, Jackson participated in
the “daughters and daddies” group chat, including being
designated as an administrator for the group. He admitted to both
sending and receiving child pornography through the group’s
chatroom. Jackson estimated that he had received approximately
1,500 images and videos over that two-year period. Jackson also
admitted to sending between 70 and 80 images to others. As the
district court noted, some of these videos and images, including
two of the videos Jackson admitted receiving as part of his guilty
plea, showed adults committing acts of sexual violence against
prepubescent children.
Although Jackson claimed to be a reluctant follower, his
communications with his brother suggested he was a willing
participant. Further, the district court found that the psychologist’s
opinion that Jackson presented a very low risk of recidivism was
less valuable given that Jackson had not been forthright in his
interview, denying and minimizing the extent of his own conduct.
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22-12533 Opinion of the Court 15
In light of the seriousness of Jackson’s child pornography
offenses and the uncertain risk he presented of recidivism, the
district court’s decision not to vary downward any further and to
impose a 138-month sentence was not an abuse of discretion.
Jackson takes issue with the weight the district court gave
the various § 3553(a) factors, but “[t]he weight to be accorded any
given § 3553(a) factor is a matter committed to the sound discretion
of the district court.”
United States v. Amedeo, 487 F.3d 823, 832
(11th Cir. 2007) (quotation marks omitted). The record shows that
the district court considered Jackson’s mitigating factors, including
Jackson’s difficult upbringing and childhood abuse, his positive role
as a husband and father, his continued family support, his lack of a
criminal history, his lesser culpability compared to his brother, and
the tendency of § 2G2.2 to result in sentencing ranges that do not
account for degrees of culpability among child pornography
offenders. The district court was within its discretion to find these
factors were outweighed by the need for Jackson’s sentence to
reflect the seriousness of Jackson’s crimes, to provide just
punishment, and to protect the public by deterring future criminal
conduct.
Moreover, the sentence imposed was below the advisory
guidelines range and almost half the statutory maximum for
Jackson’s offense of conviction.
See Woodson, 30 F.4th at 1308
(“We ordinarily expect that a sentence falling within the guideline
range will be reasonable, and a sentence imposed well below the
statutory maximum penalty indicates reasonableness.” (quotation
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marks omitted)). Jackson has not shown his sentence is
substantively unreasonable.
V. EIGHTH AMENDMENT CLAIM
For the first time on appeal, Jackson argues his 138-month
sentence constitutes cruel and unusual punishment under the
Eighth Amendment. Jackson, who was 39 at the time of
sentencing, contends his 138-month sentence is “almost a life
sentence” and is grossly disproportionate for a “first-time offender”
convicted of “non-violent offenses.”
We review for plain error an Eighth Amendment claim of
cruel and unusual punishment that was not raised before the
district court.
United States v. Suarez, 893 F.3d 1330, 1335 (11th
Cir. 2018). There can be no plain error when there is no precedent
from the Supreme Court or this Court directly resolving the issue.
United States v. Moore, 22 F.4th 1258, 1266 (11th Cir. 2022).
The Eighth Amendment prohibits the infliction of cruel and
unusual punishments. U.S. Const. amend. VIII. While the Eighth
Amendment does not require strict proportionality, it does contain
a “narrow proportionality principle” that forbids noncapital
sentences that are “grossly disproportionate” to the crime.
United
States v. Smith, 967 F.3d 1196, 1214 (11th Cir. 2020) (quotation
marks omitted) (noting that successful Eighth Amendment
challenges to noncapital sentences are rare).
In evaluating an Eighth Amendment challenge in a non-
capital case, the defendant first must make a threshold showing
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that the sentence imposed is grossly disproportionate to the offense
committed.
United States v. Carthen, 906 F.3d 1315, 1322 (11th
Cir. 2018). If the defendant makes this threshold showing of
disproportionality, we will then consider the sentences imposed on
other defendants in similar cases.
United States v. Flanders, 752
F.3d 1317, 1342 (11th Cir. 2014).
As a general rule, sentences within the statutory limits do
not violate the Eighth Amendment, as we afford “substantial
deference” to Congress’s “broad authority to determine the types
and limits of punishments for crimes.”
United States v. Johnson,
451 F.3d 1239, 1242–43 (11th Cir. 2006) (quotation marks omitted).
Thus, a defendant sentenced within the statutory limits cannot
make the required threshold-showing of gross disproportionality.
Id. at 1243.
Here, each of Jackson’s child pornography offenses carried a
statutory maximum sentence of 20 years of imprisonment.
See 18
U.S.C. § 2252(a)(2), (b)(1). In other words, Jackson faced a possible
maximum sentence of 60 years.
See 18 U.S.C. § 3584 (granting the
district court discretion to run sentences concurrently or
consecutively). Yet Jackson’s total 138-month sentence fell well
below the statutory limit for just one of his three convictions. It
was also below his advisory guidelines range.
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Under our precedent, Jackson cannot make the threshold
showing of a grossly disproportionate sentence.3
See Johnson, 451
F.3d at 1243. Moreover, he has not identified any precedent from
this Circuit or the Supreme Court holding that a total sentence
below the advisory guidelines range and well below the applicable
statutory maximum violated the Eighth Amendment. Thus,
Jackson has not shown his 138-month sentence was error, much
less plain error, under the Eighth Amendment.
See Moore, 22
F.4th at 1266.
AFFIRMED.
3 Jackson cites a 2021 Sentencing Commission study indicating that the
average sentence for a child pornography offense in the Middle District of
Florida is 122 months, with a median of 110 months. Because Jackson failed
to make a threshold showing of disproportionality, we do not consider this
data.
See Johnson, 451 F.3d at 1243 (stating that the court need not consider
sentences imposed on others convicted in the same jurisdiction for the same
crime if the defendant failed to make the threshold showing).
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